According to a 2020 Glassdoor survey, 76% of the job seekers/employees surveyed indicated that a diverse workforce is an important factor when evaluating companies and job offers. And many employers have lauded diversity as an important institutional value. But at what point might an employer’s efforts to foster a more diverse workforce or work environment give rise to unlawful discrimination?

Threat, et al. v. City of Cleveland (6th Cir. 2021) recently addressed this question. In that case, the plaintiffs – African American EMS captains – alleged that the City of Cleveland impermissibly used race as the basis for scheduling shifts. The EMS commissioner admitted that some shifts were reassigned to white captains to prevent night shifts from being staffed entirely by African American EMS personnel. The city argued that its actions were intended to “diversify the shift,” and were therefore not discriminatory.

The Sixth Circuit Court of Appeals disagreed with the city, holding that the shift reassignments amounted to race-based discrimination in violation of Title VII of the Civil Rights Act and Ohio law, where, as here, one of the captains was deprived of his preferred shift, which diminished his earned benefits. In so holding, the Court also recognized that a shift reassignment could rise to the level of a “materially adverse employment action.”

This case is a reminder that while organizations may value and promote diversity, care must be taken to avoid unlawful discrimination. As the Threat case makes clear, attempts to promote racial diversity do not justify race-based shift assignments.

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